COVID-related employment cases: 10 key lessons for employers

Author: Stephen Simpson

Employment tribunals have been deciding coronavirus-related cases throughout 2021. We set out 10 key first-instance rulings related to the pandemic and highlight what lessons employers can learn from them.

1. No blanket right to refuse to attend work during pandemic

Key case: Rodgers v Leeds Laser Cutting Ltd

What happened in this case

Mr Rodgers' employment was ended after texting his line manager to say that he would not be attending work during the first lockdown because he was concerned about infecting his young children. He refused to attend work despite:

• working in a large warehouse that was "the size of half a football pitch", with typically only five people working in this large workspace; and
• his employer sending out a staff communication confirming that it was putting in place safe-working measures, including social distancing and enhanced cleaning.

Mr Rodgers brought an unfair dismissal claim.

What the tribunal said

In rejecting Mr Rodgers' unfair dismissal claim, the employment tribunal drew a distinction between:

• an employee refusing to attend work because they have specific concerns about safety in their workplace that they have communicated to their employer; and
• what the tribunal characterised as "general concerns about serious and imminent danger all around" during the pandemic.

The tribunal accepted that the former could potentially lead to an unfair health and safety dismissal, but that the latter could not. In other words, the pandemic and fears around it did not give employees the automatic right to stay away from work when their employer required their physical attendance.

Lessons for employers

• Employers can treat an instruction to attend work as a reasonable management instruction, as long as they have sufficient safe-working measures in place and consult with employees about specific concerns.

• Additional safe-working measures may be required if the employee is pregnant; is clinically extremely vulnerable; or lives with someone who is vulnerable, for example a child with a health condition or an elderly relative.
• Adjustments that employers could make for these employees following a risk assessment include allowing them to work remotely (if their role allows), despite other employees being asked to attend work, and temporary reassignment to another role (for example removal from a public-facing role).

2. Employees can voice genuine safe working concerns

Key case: Gibson v Lothian Leisure

What happened in this case

Mr Gibson, a chef, was put on furlough when the restaurant in which he worked had to close during the first lockdown. In the run-up to the end of that lockdown, the employer asked him to do some work to help with reopening.

Mr Gibson voiced his concerns about the lack of safe-working measures, in particular the lack of PPE. He was worried that his father, who was shielding, might catch coronavirus from him.

The restaurant subsequently sent a text to Mr Gibson in which it dismissed him with immediate effect.

Mr Gibson brought a claim in the employment tribunal that his dismissal was unfair for taking steps to protect himself and his father.

What the tribunal said

The employment tribunal was satisfied that Mr Gibson was unfairly dismissed.

According to the tribunal, Mr Gibson had been a "successful and valued member of staff" before raising his concerns and he was dismissed because, in circumstances of danger that he reasonably believed to be serious and imminent, he took steps to protect himself and his father.

In upholding Mr Gibson's claim for unfair dismissal, the employment tribunal ordered his employer to pay him £23,625.

Lessons for employers

• An employer risks a tribunal claim if it dismisses, or subjects to a detriment, an employee who refuses, or is reluctant, to attend work because of genuine and reasonable concerns about a lack of safe-working measures.

• Employees are required to obey their employer's reasonable instructions. This is likely to include requiring them to attend work when the employer has put in place safe working in line with government guidance and any additional safeguards that are required because of the specific circumstances and nature of the work.
• Employers should take a sympathetic approach to workers who show an unwillingness or reluctance to return to work. Workers may have legitimate concerns and those on the ground are often in a better position than HR or management to make suggestions in relation to, or identity potential inadequacies in, safe-working arrangements.

3. Employers should take steps to protect vulnerable workers

Key case: Prosser v Community Gateway Association Ltd

What happened in this case

Ms Prosser was on a zero hours contract. Shortly before the first lockdown, she informed her employer that she was pregnant.

After the Government produced public health advice, she was not given any shifts. She eventually returned to the workplace after five months, following a risk assessment.

Ms Prosser claimed in the employment tribunal that the loss of pay during her exclusion and the failure to allow her to return to work were direct pregnancy discrimination.

What the tribunal said

The employment tribunal rejected Ms Prosser's pregnancy discrimination claim, concluding that being sent home due to being classed as vulnerable was not unfavourable treatment.

The tribunal took into account that:

• the employer was following the Government's public health advice and regulations in place at the time; and
• she was appropriately consulted about the reasons for her exclusion.

The tribunal also noted that Ms Prosser was "paid generously beyond the requirements of her zero hours contract", so she was compensated financially.

Lessons for employers

• The risks to pregnant workers during the pandemic should be assessed individually and they should be consulted about potential adaptations to their role.
• Outcomes of a risk assessment and discussions with the pregnant employee could include: allowing the employee to work remotely if this is possible; making safe-working adaptations that would allow them to attend the workplace safely while pregnant; and transferring the employee to an alternative role during their pregnancy.
• The suspension of a pregnant employee on health and safety grounds should be a last resort and must be on full pay.

4. Dismissal for failure to follow safety protocols can be fair

Key case: Kubilius v Kent Foods Ltd

What happened in this case

Mr Kubilius was a delivery driver. The majority of his work involved deliveries to and from Tate & Lyle, one of his employer's major clients.

Tate & Lyle had a strict rule that everyone had to wear a mask when attending their sites. However, Mr Kubilius was banned from its site when he repeatedly refused to wear a mask while sitting inside his cab (although he did wear one while outside his cab).

After an investigation and disciplinary process, Mr Kubilius' employer dismissed him for gross misconduct.

Mr Kubilius brought an employment tribunal claim for unfair dismissal.

What the tribunal said

The employment tribunal found that Mr Kubilius' dismissal was fair.

The tribunal said that, although another employer might have issued a warning, the employer's decision to dismiss fell within the range of reasonable responses.

In rejecting Mr Kubilius' unfair dismissal claim, the employment tribunal was influenced by:

• the importance that the employer placed on maintaining good relationships with its suppliers and customers;
• his insistence that he had done nothing wrong and the concern that he may behave in the same way again;
• the difficulty of him continuing in his role because Tate & Lyle had banned him; and
• his lack of remorse.

Lessons for employers

• It is important for employers to have clear rules on health and safety and the behaviour expected of employees in their relationships with clients, customers and suppliers.
• A failure to wear a face mask without a legitimate reason is likely to be a refusal to follow the employer's reasonable instruction and therefore grounds for beginning a disciplinary process.
• Where an employee has a legitimate reason for not wearing a face covering, for example they cannot do so for medical reasons, the employer should consider adjustments to their role.

5. Dismissal for online workplace safety rant can be fair

Key case: Lynch v Middlesbrough DP Ltd

What happened in this case

Mr Lynch, a pizza delivery driver, was concerned for his safety at the start of the pandemic. He emailed the company's HR inbox and said that he would not be coming to work until it was safe to do so. He took up the option of unpaid self-isolation.

However, Mr Lynch subsequently posted a message on Facebook that individuals who continued to work for Domino's Pizza during lockdown were "a disgrace". He also got into an online spat with a fellow employee, whom he threatened with physical violence.

Despite a later apology, Mr Lynch was dismissed for making the threats, which were a breach of the employer's social media policy.

Mr Lynch claimed unfair dismissal on the basis that he was dismissed for having made protected disclosures.

What the tribunal said

In dismissing Mr Lynch's unfair dismissal claim, the tribunal concluded that his actions amounted to gross misconduct justifying summary dismissal.

The tribunal went on to conclude that, even if Mr Lynch's complaints could be regarded as protected disclosures, there was no indication that Mr Lynch was dismissed because of them.

According to the tribunal, the main reason for Mr Lynch's dismissal was that he had made a serious threat against a colleague, in breach of the employer's social media policy.

Lessons for employers

• Safety during the pandemic can be an emotive subject, but employers are entitled to respond robustly to employees who make inappropriate comments on social media about their working arrangements.
• Employers should have a clearly communicated policy on the use of social media that is given to new starters.
• Employers can provide reminders (for example via regular online training) that explain their social media rules and requires employees to acknowledge that they have read and understood the social media policy.

6. Redundancy: no obligation to furlough employee

Key case: Handley v Tatenhill Aviation Ltd

What happened in this case

Mr Handley was a flying instructor. He was put on furlough when the aviation firm for which he worked had to shut early in the pandemic.

When the aviation firm began to struggle financially, Mr Handley's employer made him redundant. The employer took the view that there would be a long-term reduction in the need for flight training and it was uncertain how long the furlough scheme would last.

Mr Handley contended in his unfair dismissal that the employer should have kept him on furlough instead of dismissing him.

What the tribunal said

The employment tribunal upheld Mr Handley's unfair dismissal claim, although he was awarded no compensation.

The tribunal accepted that, while another employer might have chosen to leave Mr Handley on furlough, the decision to make him redundant was within the range of reasonable responses.

According to the tribunal, it is for the employer to decide how to structure its business and when to make redundancies.

However, the tribunal found the dismissal to be unfair because of procedural defects in the employer's redundancy procedure. Ultimately, Mr Handley's compensation was reduced to zero because he would have been dismissed even if a fair procedure had been followed.

Lessons for employers

• Employers that made employees redundant while the furlough scheme was open can rest assured that at no point has there been a right to be furloughed.
• However, tribunals can take into account if the employer gave proper consideration to whether the employee could have been furloughed as an alternative to being made redundant.
• Here, tribunals do acknowledge that it should generally be left to the employer to decide how to structure its business and if and when to make redundancies.

7. Redundancy: failure to consider furlough affects fairness

Key case: Mhindurwa v Lovingangels Care Ltd

What happened in this case

Mrs Mhindurwa worked for Lovingangels Care Ltd. She provided live-in care until the person she was caring for went to live in a care home.

The employer told Mrs Mhindurwa that there was no other live-in care work available and she was made redundant. This was despite her request to be furloughed, which was refused.

Mrs Mhindurwa brought an unfair dismissal claim, citing in particular the employer's failure to consider her furlough request seriously.

What the tribunal said

The employment tribunal upheld Mrs Mhindurwa's claim.

The tribunal highlighted that the purpose of the furlough scheme was to avoid laying off employees because of the pandemic and this was exactly the type of situation that the furlough scheme envisaged.

In the tribunal's view, a reasonable employer would have considered if she could be furloughed to avoid being dismissed for redundancy.

Lessons for employers

• Considering possible alternatives is a key step for employers to ensure that a redundancy dismissal is fair.
• Employment tribunals can take into account a failure to consider if the employee could have been furloughed instead of being made redundant.
• As a minimum, tribunals will expect the employer to have assessed whether the employee could have been temporarily furloughed to see if the situation improved.

8. Variation: employee's agreement required to reduce pay

Key case: Khatun v Winn Solicitors Ltd

What happened in this case

At the start of the pandemic, Winn Solicitors put half of its staff on furlough.

The employer also required employees to sign a variation of contract to allow it, with five days' notice, to furlough them or reduce their hours and salary by 20%.

Ms Khatun, a solicitor, refused to sign the variation of contract, which led to her dismissal. She was given no option to appeal.

Ms Khatun brought an unfair dismissal claim in the employment tribunal.

What the tribunal said

The employment tribunal agreed that the reason for Ms Khatun's dismissal was "some other substantial reason" and it had "sound, good business reasons" for asking employees to agree to the variation.

However, the tribunal found that the employer had gone about it in entirely the wrong way. The tribunal criticised:

• an almost complete lack of any meaningful consultation with staff;
• the assumption from the start that refusal to sign would automatically mean dismissal;
• the disregard for Ms Khatun's existing terms and conditions;
• the failure to explore if there were any alternatives to dismissal, with furlough being one option; and
• the absence of the opportunity to appeal against dismissal.

Given these flaws, the employment tribunal had little hesitation in upholding Ms Khatun's unfair dismissal claim.

Lessons for employers

• Now that the furlough scheme is no longer available, some employers may be thinking about asking employees to agree to a pay cut as a way to reduce or avoid the need for redundancies.
• A proper consultation process needs to be carried out when asking employees to agree to reduce their pay.
• The controversial practice of dismissing employees and re-engaging them on less generous terms, often referred to as "fire and rehire", should be a last resort.

9. Remote working request refusal can result in tribunal case

Key case: An Operations Coordinator v A Facilities Management Service Provider

What happened in this case

In this Republic of Ireland case, the complainant was an operations coordinator working in a small office at a university. The complainant was concerned about catching and passing COVID-19 on to her asthmatic husband.

After coronavirus cases appeared in Ireland in March 2020, the three coordinators requested to work remotely, pointing out that they had been supplied with laptops and already occasionally worked from home.

The operations coordinators suggested that, if they could not all work remotely, it would be reasonable for them to rotate their presence in the office, with only one person attending the office at any one time. The employer rejected this suggestion.

The complainant resigned and claimed constructive dismissal.

What the tribunal said

The Workplace Relations Commission in Ireland upheld the claim.

The Commission criticised the employer for failing to take up the coordinators' "eminently sensible" suggestion of rotating their presence in the office.

According to the Commission, it would have been advisable for the employer to have trialled this working arrangement.

The Commission noted that:

• the coordinators already had the equipment needed to work remotely;
• the three roles were interchangeable, meaning that they could cover for each other;
• much of their work was computer based; and
• while an on-site presence was needed, student numbers on the campus had dropped dramatically.

The Commission awarded €3,713 to the complainant. The award was relatively low because she had mitigated her loss by quickly finding another job.

Lessons for employers

• Although it is a first-instance ruling given in a different jurisdiction, this case is an early example for UK employers of an employee winning a claim following the rejection of a flexible working request during the pandemic.
• Where a line manager or HR professional has turned down a remote working request where the job can reasonably be adapted, the employer could face a constructive dismissal and/or discrimination claim.
• Rather than immediately rejecting a flexible working request, it is good practice for the employer to allow the employee to work flexibly on a trial basis.

10. Difficult job market during pandemic pushes up awards

Key case: Thompson v Scancrown Ltd (t/a as Manors)

What happened in this case

Mrs Thompson, a sales manager at an independent London estate agents, made a flexible working request in advance of her return from maternity leave.

Mrs Thompson proposed that she return to work on a four-day working week and change her hours to end her day at 5pm rather than 6pm to collect her child from nursery.

Despite making suggestions as to how the arrangement could be made to work in practice, Mrs Thompson's flexible working request was turned down.

Mrs Thompson resigned and brought an employment tribunal case, which included a claim for indirect sex discrimination.

What the tribunal said

The employment tribunal upheld Mrs Thompson's claim.

The tribunal accepted that the employer's refusal to allow Mrs Thompson to move to a four-day working week and the requirement to work until 6pm each day placed her at a substantial disadvantage.

According to the tribunal, the refusal of the flexible working request was not a proportionate means of achieving the legitimate aim of maintaining successful relations with customers.

The employment tribunal awarded nearly £185,000 to Mrs Thompson. The majority of the award was for loss of earnings, as the tribunal acknowledged the difficulty that she had in obtaining work at a comparable salary, given the impact of the pandemic on the job market in her sector and the London housing market.

Lessons for employers

• Taken in isolation, the right to request flexible working is a weak employment right, given the wide variety of business reasons for refusal that employers can give.
• However, the right to request flexible working becomes much more powerful when allied with a discrimination claim. Employers need to be particularly wary to avoid their stance on flexible working leading to disability discrimination or pregnancy and maternity discrimination claims, where compensation is uncapped.
• The claimant in this case was awarded loss of earnings for over 18 months, which is an unusually long period for loss of earnings compensation. In the next few years, employers could face some bigger awards than usual, on the basis of the difficulty of finding another job in certain sectors.